Judge rules Nebraska can proceed with immigration detention at McCook prison, but lawsuit will continue

The former Work Ethic Camp in McCook can continue its transformation into an immigration detention center as a lawsuit challenging the legality of the facility makes its way through court, a Nebraska judge ruled on Monday.

Read Judge Heng's order on the motions

Judge Patrick Heng, who represents Nebraska's 11th Judicial District, denied both a motion to dismiss the lawsuit and a motion for an injunction that would have stopped the state from spending taxpayer funds to transform the former Nebraska prison camp into a federal immigration detention facility, dubbed the 'Cornhusker Clink.'

Heng heard arguments on Friday on both motions in a hearing that lasted for more than two hours. The lawsuit was brought by DiAnna Schimek, a former Nebraska State Senator, and 13 residents of Red Willow County. The defendants are Nebraska Gov. Jim Pillen and Rob Jeffreys, the director of the Nebraska Department of Corrections.

Pillen announced in August that the state would enter into an agreement with the Department of Homeland Security to operate an immigration detention facility at the former site of the Work Ethic Camp, a minimum-security prison in McCook. The contract between DHS and the state was signed on Sept. 20 and released publicly earlier this month. Nebraska will be paid about $2.5 million per month to house up to 300 immigration detainees under the contract, which is set to last through 2027. The state will also receive a $5.7 million reimbursement for modifications made to the Work Ethic Camp.

Attorneys for Pillen and Jeffreys argued that the lawsuit should be dismissed outright because necessary parties were not named, and because they said the plaintiffs lacked standing to bring it in the first place. Schimek and the Red Willow County residents brought the lawsuit, in part, under the doctrine of taxpayer standing, which allows members of the public to challenge allegedly illegal expenditures of public funds.

Pillen and Jeffreys argued that the plaintiffs did not have taxpayer standing because they couldn't point to direct expenditures, and because the state funds spent will be reimbursed by DHS. Heng rejected that argument.

"There will clearly be State funds expended now, as evidenced with the fence contract, and in the future," Heng wrote in his order. "The fact that these funds will be reimbursed under the DHS contract and the State made whole, should not deprive the taxpayer the standing to challenge alleged unlawful actions or expenditures."

But Heng also appeared unpersuaded by the plaintiff's arguments in his order dismissing the motion for a temporary injunction. For an injunction to succeed, the judge must find that the plaintiffs will suffer irreparable harm if it is not granted, and that they are likely to succeed on the merits of the case. He found that they are not likely to succeed on the merits.

Whether or not they would suffer irreparable harm depends on whether the expenditure of taxpayer funds is illegal, Heng said. And though Heng said the defendant's arguments against irreparable harm – that the money will be reimbursed and the facility will result in a net positive for the state – were "concerning at best" and "Machiavellian," he still found that the expenditures are legal under state statute and are not beyond Pillen's authority.

"It is clear that the current situation with the Department and ICE detainees was never contemplated when the statutes were created, but the language utilized by the Legislature is broad enough to allow the Defendants to take the action they have chosen," Heng wrote.

Robert McEwen, the legal director at Nebraska Appleseed, which is representing the plaintiffs, said they are disappointed that the injunction was denied, but pleased that the case was not dismissed.

"The case will carry forward from here, and we will continue to represent the interests of our clients in halting the activities of the Defendants as they relate to the large-scale detainment camp in McCook,” McEwen said in a statement.

Pillen said in a statement that he appreciated the court's quick decision "which affirms the state's right to enter into the contract with the Department of Homeland Security and provides the authority to operate the detention facility under the Nebraska Department of Corrections."